Civil LIberties Violated - Help BadApple

[SDDubb]

What is the name of your state? FL
I posted another message that states specifics. I wanted to know if when I was charged with a crime (Failure to Obey) but NOT allowed to elect courts-martial because I was attached to a sea-going command, (Naval Ship) isn't that a violation of my civil liberties (right to a trial by jury)? I was told that I had to take Article 15 because I was attached to a ship, and that I had no choice. Please help me BadApple.

 

[racer72]

Of course you realize that as a member of the armed services, you give up certain rights and priveliges in order to maintain a well trained and organized military. This is one of those cases.

 

[SDDubb]

Well I realized that we must abide by an additional set of laws (The UCMJ) however, I don't recall signing anything that said anything to the effect of giving up any civil liberties. So while that is a somewhat accurate statement, I also don't see it to be anything more than a skewed generalization. SOmeone let me know if I am wrong, because I wan't to make this right.

 

[seniorjudge]

"...Well I realized that we must abide by an additional set of laws (The UCMJ) however, I don't recall signing anything that said anything to the effect of giving up any civil liberties...."

Just curious here...are you saying that you did not know this happened to you when you went into the military?

 

[SDDubb]

Yes...I know I made sacrifices...but I think the generalization that we give up civil liberties is presumptuous. I dont remember, (in the multitude of documents that I signed) where I signed anything regarding, "You are sacrificing these civil liberties." I remember being presented with the UCMJ...but not a waiver of the bill of rights, or anything contained within it. Let me know if I am wrong, I have my service record, if you know the DD Form number, I will retract my last statement and rest my case.

 

[gphjr]

On the Article 15 there is a block that you check. If you sign it accepting the Article 15 then this case is over. If someone told you verbally that you had to except the AR 15 and it is not in writing then you had been suckered. You may check any block you want to. No-one can tell you to what you have to except.Until they give you an AR 15 or courts martial your butt. take your punsihment and drive on. Its better then a federal conviction for being a bad listener

 

[seniorjudge]

"...If someone told you verbally that you had to except the AR 15..."

Do you mean except or accept? Big differene. Just wondering....

 

[SDDubb]

Well no it is apparently well-known that in the Navy, when you are in the "fleet" and attached to a sea going command, then you don't have a right to elect a courts-martial. Yeah I was told this verbally, and I would actually have to look at a copy of my Article 15 to confirm...

However, I want to add that if you don't know what you are talking about on this topic, please don't post a pretentious reply. To say I got suckered and to just deal with it is a slap in the face and not an answer of how this is not a violation of civil liberties. Let me restate my question.

How can I be charged with a crime, but then not allowed my constitutional right to a trial by jury because I am attached to a sea-going vessel (ship)?

Please only answer if you have any insight or knowledge on this topic. Do not reply if you think you have some lessons of manhood to teach me about taking responsibility or just dealing with it. That is not advice, it is garbage and is condescending. I've already received my punishment and then some...I want to correct the "and then some" part. Thanks

 

[seniorjudge]

Q: How can I be charged with a crime, but then not allowed my constitutional right to a trial by jury because I am attached to a sea-going vessel (ship)?

A:
http://www.armfor.uscourts.gov/opinions/2002Term/01-0134R.htm

The Sixth Amendment right to trial by jury does not apply to courts-martial. New, 55 MJ at 103; United States v. Kirkland, 53 MJ 22, 24 (2000); United States v. Loving, 41 MJ 213, 285 (1994); United States v. Smith, 27 MJ 242, 248 (CMA 1988); United States v. Kemp, 22 USCMA 152, 154, 46 CMR 152, 154 (1973).

 

[gphjr]

"...If someone told you verbally that you had to except the AR 15..."

Do you mean except or accept? Big differene. Just wondering....

WOW I made a mistake with my grammar again and didn't get BLASTED. I meant Accept. I got a D in English at college.

 

[seniorjudge]

WOW I made a mistake with my grammar again and didn't get BLASTED. I meant Accept. I got a D in English at college.

I am a very nice person.

 

[SDDubb]

Well, I don't particularly like what I see...BUT that doesn't matter. Thanks for finding the answer for me Seniorjudge.

 

[seniorjudge]

Well, I don't particularly like what I see...BUT that doesn't matter. Thanks for finding the answer for me Seniorjudge.

You're welcome. Here is part of the Constitution you are sworn to uphold:

United States Constitution
...
Article I
...
Section. 8.

...

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

...

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
...

 

[badapple40]

What is the name of your state? FL
I posted another message that states specifics. I wanted to know if when I was charged with a crime (Failure to Obey) but NOT allowed to elect courts-martial because I was attached to a sea-going command, (Naval Ship) isn't that a violation of my civil liberties (right to a trial by jury)? I was told that I had to take Article 15 because I was attached to a ship, and that I had no choice. Please help me BadApple.

You are out of luck, and I apologise for not getting back to you sooner.

First, the text of 10 U.S.C. 815 (Article 15, UCMJ):

§ 815. Art. 15. Commanding officer's non-judicial punishment

(a) ... However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant.

(emphasis added)

Provisions of 10 USCS § 815 authorizing Captain's Mast notwithstanding objection of defendant, are not unconstitutional in view of establishment of balance of interest between parties, and underlying justification for nonjudicial punishment as necessary to meet exigencies of shipboard discipline; and, for purposes of 10 USCS § 815, one of two crews of nuclear submarine, which rotates alternately between duty on submarine at sea and training on land, is "attached to or embarked in a vessel" within meaning of 10 USCS § 815. Bennett v Tarquin 466 F Supp 257 (1979, DC Hawaii).

In determining whether Article 15 (10 USCS § 815) deprives those attached to or serving aboard ship of due process of law, proper test is whether there is rational basis for denying those service members option to refuse nonjudicial punishment, and rational basis for such differential treatment is found in unique responsibility of ship's captain and in interest of maintaining morale and discipline aboard ship. United States v Penn 4 MJ 879 (1978, NCMR).

It may be, however, that you may currently find success under current notions of due process, especially with respect to the military, given the Hamdi decision concerning enemy combatants. I would try to raise it before the Navy Discharge Review Board (if you are trying to upgrade a discharge) or the Navy Board for the Corrections of Records (if you are trying to otherwise obtain collateral relief from the 15).

 

[SDDubb]

Thanks!

Thank you SO MUCH for replying to me. So just to paraphrase and make sure I understand you...because of what 10 U.S.C. 815 (Article 15, UCMJ) says...what happened to me (no courts martial option) is allowed at a Naval sea-going command and thus civil liberties are NOT violated (even though that may be questionable to someone in my position)...so to fight to upgrade my discharge based on those grounds and that angle may probably prove fruitless.
However, my possibly being deprived of "due process of law" is an approach that may yield me a more desirable outcome since the test to determine for that is the unique responsibility of the ships captain - (i.e. open to interpretation by him.) ESPECIALLY with the more recent developments of the Hamdi decision (Hamdi vs. Rumsfeld) - the guy who was captured in Afghanistan whose detention resulted in the supreme court "levying procedural due-process requirements on the government." (http://slate.msn.com/id/2103112) Is that right? Would you mind elaborating how I could apply Hamdi to prove IMPROPRIETY or INEQUITY at a DRB (or would it be an appeal for clemency)?
I CERTAINLY DO appreciate your efforts and time. Thank you, sir.